Jury rejects San Jose sisters' Watson Park claims

SAN JOSE -- A jury Friday declined to award damages to two sisters who claimed they suffered illnesses from long-term exposure to toxins at Watson Park near their family home.

Attorneys said the case brought by Diana Bernal-Tuyor and Nanetta Bernal-Mendoza has been the only one seeking to hold the city liable for illnesses arising from the contamination at the park, which reopened in 2011 after seven years of cleanup following discovery of lead and other toxins in the topsoil of what had once been a municipal dump.

"It's really hard to battle with the city of San Jose," Bernal-Tuyor, 58, said Friday. "Just because I lost doesn't mean I don't feel for other children. I don't want that to happen to any other children."

Her lawyer, John Shepardson, said that while walking the park Tuesday, he noticed old glass bottles and debris in a creek bed at the park that resembled contaminated material and alerted the city to examine the area.

"That was troubling," Shepardson said, "because they did the remediation, and the public believes it's safe."

City officials said they would look into it but were skeptical. City Attorney Rick Doyle said the city spent more than $6 million on cleanup, removing and replacing topsoil in coordination with the state Department of Toxic Substances Control.

"To our knowledge, there's not any problem out there now," Doyle said, suggesting the loss of the case may have been a "motivator" behind the concern. "We've been given recent signoff that everything was handled properly and that people can use the park."

Advertisement

Watson Park, along with neighboring Empire Gardens Elementary School, was the site of San Jose's main garbage dump and incinerator more than 75 years ago. Trash and toxic incinerator ash were buried on the site and forgotten until a routine construction project in the park unearthed signs of the old dump in 2004. After environmental tests found high levels of lead and other toxins in the park, city officials closed it in 2005.

In addition to the cleanup, the city offered compensation up to $27,000 for the resulting loss of property value to park neighbors, including the Bernal family. But many homeowners felt the offer was insufficient.

The lawsuit was filed in May 2010 on behalf of Mike and Susan Bernal, who bought their family's Terrace Drive home in 1964, their five daughters and two sons, as well as their six grandchildren. The suit alleged more than half a dozen claims including that San Jose was liable for negligence, maintaining a dangerous condition and a nuisance on public property. It sought unspecified damages, including for medical expenses and lost property value.

The suit argued that members of the Bernal family suffered "numerous medical conditions" linked to long-term exposure to contaminants found at the park, from cancer, schizophrenia and depression to migraine headaches and memory loss.

By the time the case went to trial, the family patriarch had died and only two of his seven children continued to press the case. The jury of 11 men and one woman ruled 9-3 against them, finding the city did not "create a condition that was harmful to health."